SC judges air divergent views in poll date suo motu

• Justice Mandokhel terms notice “not justified”; Justice Minallah and Justice Shah question “dissolution” of KP and Punjab assemblies
• CJP intends to wrap up matter by next week, compares it with Molvi Tamizuddin case

ISLAMABAD: The nine-member Supreme Court bench conducting suo motu proceedings regarding delay in the announcement of a date for provincial elections, appeared at odds on Thursday, as it issued notices to the stakeholders and asked them to come up with “skeleton arguments” on Friday (today).

Attorney General for Pakistan (AGP) Shehzad Ata Elahi, Election Commission of Pakistan (ECP), government through the cabinet secretary, chief secretaries of Punjab and Khyber Pakhtunkhwa (KP), Pakistan Bar Council (PBC), the Supreme Court Bar Association (SCBA), all the advocate generals of the provinces, and the Pakistan Democratic Movement (PDM) were also issued notices.

Due to the urgency of the matter, the order asked the parties to consider information through media as if they have received notices and prepare themselves for a skeleton argument. Since President Dr Arif Alvi and the two governors enjoy immunity from any notice under Article 248, the court ordered their principal secretaries to inform the office holders and seek their instructions to furnish their points of view before the court.

‘Divided’ bench

During Thursday’s proceedings, Justice Jamal Khan Mandokhel objected to the suo motu notice and termed it “not justified”.

“In these circumstances, it was not appropriate to refer the matter to Chief Justice of Pakistan (CJP) for taking suo motu under Article 184(3) of the Constitution,” observed Justice Mandokhel in a note he read out during the hearing in jam-packed Courtroom No 1.

Two other judges of the bench, which assembled 30 minutes behind schedule, Justice Syed Mansoor Ali Shah and Justice Athar Minallah, changed the complexion of the proceedings when they raised queries regarding the motive behind the dissolutions of assemblies. The queries raised were added to the list of questions earlier framed by the CJP while initiating the suo motu notice.

Justice Shah highlighted the need to ascertain the reasons behind the dissolution of the provincial assemblies and in case the reasons were not in accordance with the constitutional framework, Justice Shah wondered could the assemblies be restored to end the present crisis. Likewise, Justice Athar Minallah questioned could the chief minister act on the dictates of the political parties or the political leaders to dissolve the provincial assembly which was elected for a five-year period. Does this dissolution violate the constitutional mandate given by the electorates, he wondered.

A clear divide was visible, since objections on the suo motu as well as observations came from judges sitting on the left side of the CJP, whereas those on his right remained silent, except for Justice Munib Akhtar, who opposed the idea of issuing notices to political parties.

In his objection, Justice Mandokhel recalled how Justice Ijazul Ahsan and Justice Mazhar Ali Akbar Naqvi who were hearing a service matter of CCPO Lahore Ghulam Mehmood Dogar, called Chief Election Commissioner (CEC), who was not a party to Dogar’s petition, and asked him about elections in Punjab.

Irrespective of the CEC reply, both judges deemed it appropriate to refer the matter to the CJP to take the suo motu notice. The matter pertaining to elections has no nexus or connection with the service matter, observed Justice Mandokhel.

In his note, Justice Mandokhel also mentioned the three audio recordings. In one of the recordings, Dogar’s lawyer Abid Zuberi was reportedly heard talking to the former Punjab chief minister about the case of Dogar, which Justice Mandokhel observed was very serious. Besides these two judges have already expressed their opinion by stating that elections were required to be held within 90 days and that there was an imminent danger of violating the Constitution.

“With greatest respect, the CJP has added to the points mentioned by the two judges and has also expressed his opinion,” observed Justice Mandokhel, adding such definite opinions have decided this matter and done so without taking into consideration Article 10A of the Constitution which deals with fair trial. Thus in these circumstances, it was not appropriate to refer the matter to CJP for taking suo motu notice,“ Justice Mandokhel observed.

However, the CJP observed that the reservations expressed by Justice Mandokhel could be disregarded since the petitions by former speakers of the provincial assemblies were also before us and appended the same in the court order.

‘No tolerance for violations’

During the hearing, the CJP observed that the Supreme Court does not tolerate constitutional violations unless extraordinary circumstances are to occur. He added there was another way, which was to hear the other side. He said that the matters concern public interest; therefore, there should be some clarity instead of putting the constitutional matter in a state of limbo.

He also recalled in addition to the petition of the Islamabad High Court Bar Association (IHCBA), the speakers of the respective provincial assemblies namely Punjab and the Khyber Pakhtunkhwa (KP) were also standing before the court. “In fact, Maulvi Tamizuddin Khan – former speaker of the constituent assembly and the National Assembly is standing before us,” observed the CJP.

He also dropped hints to decide the matter in the next week since the schedule of the next week stands cancelled, saying the subsequent events have made the current situation graver and due to this seriousness, the court had to take suo motu notice.

Notwithstanding the lapse of nearly six weeks after the dissolution of provincial assemblies, the matter regarding who has the authority to fix the election dates of the provincial assemblies still exists, the CJP observed.

Separately, the Pakistan Bar Council issued a statement asking the CJP to include senior puisne judge Justice Qazi Faez Isa and Justice Sardar Tariq Masood so that the bench could look “impartial and neutral”. Propriety demands that Justice Sayyed Mazahar Ali Akbar Naqvi will voluntarily recuse him from the hearing, it hoped.

Published in Dawn, February 24th, 2023